In October 1841, William Phelps Pickering became the first person sentenced to transportation from New Zealand. His seven year sentence was handed down at the first Quarter Sessions ever held in Auckland after Pickering was found guilty of fraud and misrepresentation.

It was one thing for a New Zealand court to hand down a sentence to transportation, but another – legally and logistically – for it to be carried into effect. The month after Pickering was sentenced, Governor William Hobson proclaimed Van Diemen’s Land as the site to which convicts could be transported from New Zealand. His administration then had to contract the owner of an inter-colonial trading vessel to convey the prisoner to the penal colony. Over the following decade, small ships plying the trade routes between New South Wales, Van Diemen’s Land, and New Zealand carried prisoners from Auckland and Wellington to Hobart, accompanied by police guardsmen.

Convict indents, conduct records, court and newspaper reports, and colonial correspondence confirm that at least 109 men and one woman were transported from New Zealand to Van Diemen’s Land between 1842 and 1853. These records, particularly the indents held in Tasmania, reveal fascinating micro-histories that not only detail the prisoners’ life courses but also highlight processes of British colonisation. Through meticulously recording the prisoners’ ‘native place’ or places of origin, for example, colonial clerks reveal how New Zealand’s population in the 1840s and early 1850s was culturally and ethnically diverse.

This disrupts the British coloniser/Māori colonised binary that tends to characterise New Zealand colonial history. Such a binary perspective fails to take account of the presence of men such as Heke, a Hawaiian sentenced in the Auckland Supreme Court on 4 March 1851 to transportation for life, or Emmanuel Lewis, a black cook originally from Spain who arrived in New Zealand via America before being sentenced on 20 September 1844 to transportation for ten years.

Tellingly, almost half of those transported from New Zealand to Van Diemen’s Land were currently serving or former British soldiers. Many of these men ended up in the Antipodes after serving as guards on convict transports between Britain and the Australian penal colonies. Some were redeployed to New Zealand in the 1840s following the outbreak of the Northern Wars in the far north of the North Island and the Lower Hutt War near Wellington. Of the 51 soldier convicts transported to Van Diemen’s Land, 24 faced a court martial. The remaining 27 were tried civilly, some because they had already left the military and others because they had deserted but then committed crimes such as larceny while on the run.

The majority of those sentenced to transportation either deserted or committed offences designed to engineer their removal from the theatre of war. At least one admitted on his arrival in Hobart to having been scared of Māori fighting men. One of the first redcoats transported from New Zealand, Private Richard Shea of the 99th Regiment, was sentenced to transportation for life following a court martial in Auckland on 9 May 1846 at which he was found guilty of having ‘struck Lieutenant Johnson at Porirua’, an act he later described as having been carried out using his firelock when on parade. In a similar incident in which a soldier struck Judge Henry Chapman in Wellington, it was widely thought that the redcoat desired to be transported. He was flogged instead.

The types of trial that those sentenced to transportation faced, and the locations at which these trials were held, reflect the spread of colonisation and intensity of resistance to it, and also chart the imposition of English-derived colonial law across New Zealand..

On the other side of the frontier, at least six Māori, including Te Kumete, were transported to Van Diemen’s Land, five after being court martialled in relation to their involvement in the Lower Hutt War and one as the result of a civil trial. Neither the court martial nor the civil trial included Māori adjudicators. However, unlike in the Australian colonies where Aboriginal people were involved almost solely as defendants in the court system, New Zealand had a long history of Maori involvement at the bench. In June 1842, for example, when Edmund Halswell heard a case against two Māori, Te Kopo and E Pokai accused of stealing pork, a chief known as ‘Turingha Kuri’ (Taringa Kuri/Te Kaeaea), sat at the bench with the judge. Māori involvement in helping to dispense colonial justice in New Zealand had a long lineage dating back to a proclamation of 9 November 1814 in which the governor of New South Wales, Lachlan Macquarie appointed the missionary Thomas Kendall as resident magistrate at the Bay of Islands and also named Ruatara, Hongi Hika and Korokoro as magistrates in New Zealand.

Margaret Reardon, a 26 year old dressmaker originally from Ireland who arrived free in Auckland via Sydney, was the sole female sentenced to transportation from New Zealand. She was convicted of perjury at the Supreme Court in Auckland in September 1848, and was probably fortunate to have escaped murder charges, after having falsely accused two men of committing a murder for which her de facto husband was later hanged. The marked gender disparity evident in relation to sentences to transportation can be explained by the fact that very few women were charged with serious crimes in early colonial New Zealand. As Megan Simpson pointed out, only seven female defendants (including Reardon) appeared before the colony’s Supreme Court in the 1840s and it was solely this higher court that dispensed sentences to transportation following its founding in 1842.

Author: Kristyn Harman

Further Reading: Kristyn Harman, 2017. Cleansing the Colony: Transporting Convicts from New Zealand to Van Diemen’s Land. Dunedin: Otago University Press; Megan Simpson, 2010. “R v Margaret Reardon, Supreme Court Auckland, 1 September 1848”, Victoria University of Wellington Law Review (41), 99–106; Robert Burnett, 1978. Penal Transportation: An Episode in New Zealand History. Wellington: Victoria University of Wellington; Terry Carson, 2016. The Axeman’s Accomplice: The True Story of Margaret Reardon and the Snow Family Murders. Auckland: Alibi Press, 2016.

As one of the two original Australian convict colonies, Tasmania shares with New South Wales an ignominious history of capital punishment in the first half century of settlement.

The Prosecution Project has recently completed an inventory of executions carried out in Tasmania, beginning in the year 1806 and extending to the last in 1946. This is a painstaking exercise since there is no single source accounting for all the executions that took place. But our data now suggests that there were a total of 545 executions out of the 1469 death sentences handed down by courts in Tasmania over that period. Not all the executions took place in Tasmania itself. Prior to 1824 when the Supreme Court was established, at least 15 were tried in Sydney though executed in Tasmania. The Tasmanian data also includes the death sentences carried out at Norfolk Island, 37 of them during the convict years.

By the 20th century the legal system, government policy and public sentiment had combined to diminish drastically the use of the death penalty in Tasmania. Only three people were executed as a result of a judicial sentence during the twentieth century. The frequency of executions had been steadily falling since the 1850s. As our graph shows there was a final flurry of executions around 1860, no less than 12 being sent to the gallows in 1859. But the historical record suggests that 90% of death sentences carried out in Tasmania occurred in the period before self-government.

It is well-known that the British settlers brought with them a capital code, used intensively in the first few decades of the 19th century. It was not till the late 1830s that statutory reform reduced the number of offences for which a death sentence might be awarded. In Australia the colonies did not adopt the imperial model fully, for example retaining the death penalty for rape well into the 20th century in some states. But after 1837, for example, the penalty for conviction on the common charge of housebreaking (breaking into a house and stealing) was no longer death.

Another important mitigation of the death penalty was contained in the provision for the sentence of ‘death recorded’, enabled by an English law reform in 1823. This was a discretionary provision, most commonly applied in cases of property offence, more rarely in cases of non-homicidal offences against the person. Some indicator of increasing leniency in judicial sentencing is evident in the fact that while less than a quarter of sentences in the earlier decades were ‘death recorded’, this penalty benefited almost a third of those convicted of a capital offence after 1837. A little more common was the post-sentence exercise of clemency, with death sentences being commuted to life imprisonment or transportation. And a few even benefited from an executive pardon, after post-conviction information was brought to the notice of the attorney-general.

The effect of the legal changes in the 1830s is reflected in the pattern of sentences for which people were hanged before and after 1837. Prior to that date it was not murder but a variety of property offences that were most likely to bring an offender to the gallows. Not so serious offences of stealing and receiving accounted for more than a quarter of executions before 1837 and the more serious property offences of robbery and its colonial variant bushranging accounted for another third. Robbery remained a serious and capital offence after 1837 but accounted for only about one in six of the 256 executions that took place after that date. The effect of law reform was to accentuate offences against the person as the most serious criminal offences. And so two-thirds of executions after 1837 were for a homicide offence, and one in 10 for a sex offence.

Together, Tasmania and New South Wales executed their sentenced prisoners in numbers to rival those so punished in Britain in the 1820s and 1830s. These were decades preceding the effect of law reform that reduced the number of offences liable to the death penalty. Local government policy directed to the control of a convict population and its ancillary challenges, especially bushranging, help to explain the drastic use of the death penalty. In Tasmania policy seemed especially harsh – a greater proportion of those sentenced to hang in the convict colony during the after years were more likely to end their lives in this way than in New South Wales. For both places, the convict legacy in historical memory remains one of harsh but also, as this data shows, commonly mitigated punishment.

Why do people need lawyers? This may sound like the start of a joke. Yet the need for lawyers remains a serious issue for anyone seeking protection of their constitutional rights, arbitration in civil disputes or a fair trial in criminal matters.

Access to legal services has become a particularly serious question in recent years, given the worldwide trend towards decreased legal aid funding. One of the most egregious features of US President Donald Trump’s proposed budget cuts, for instance, is the elimination of the Legal Services Corporation, which provides support to legal aid programs that service around 2 million low-income individuals annually. The $352 million funding cut will decimate Americans’ access to equal justice, a principle championed even by one of Trump’s idols, Justice Antonin Scalia, at the 40th anniversary of the LSC in 2014.

Think such concerns sound far-fetched? Big data research on the history of the criminal trial in Australia, conducted as part of the ARC-Laureate Fellowship Prosecution Project, suggests otherwise. Let’s rewind to consider what criminal justice used to be like before the rise of defense lawyers and the birth of modern legal aid.

History of criminal defense lawyers

The criminal trial as we know it today – two lawyers on competing sides – only came into existence in the eighteenth century. Before this, under the English common law system felony defendants were prohibited from employing lawyers to speak for them in court. It was only in 1836 that the Prisoners Counsel Act allowed lawyers to fully act for clients in criminal matters.

Nevertheless, while criminal defendants now had the right to a lawyer in England and its Australian colonies, this was no guarantee they would get one. Legal representation remained largely dependent on an individual’s capacity to pay. Prosecution Project data show that by 1861 less than half of defendants charged with serious crimes had legal representation.

Lawyers by Honore Daumier. Image via Wikimedia Commons.

Nineteenth-century judges did have the discretionary power to appoint lawyers for defendants who faced the death penalty. However, they did not always choose to do so. Citizens of Bendigo were outraged in 1871 when a death sentence was handed down to a man who had been undefended in court. Even if counsel was appointed for a defendant, this was often only done on the day of the trial itself, with the defense sometimes having mere minutes to confer with their client before proceedings.

Things slowly began to change in the twentieth century. In 1903, the Commonwealth introduced a ground-breaking piece of legislation that allowed impoverished defendants accused of any federal crime to apply for legal representation. Over succeeding decades Poor Prisoners Defense Acts were introduced across the different state jurisdictions.

However, restrictions on eligibility for assistance meant many remained undefended. Prosecution Project data – the first in the world to track legal representation over a sustained period – suggests that between a quarter to a third of defendants facing serious gaol time remained undefended through to the early 1960s, when modern legal aid schemes began to be introduced.

Impact of lawyers on trial outcomes

But did not having a lawyer matter to those who historically went undefended? The Prosecution Project research suggests that it was perhaps one of the most important factors in trial outcomes.

Compared to a defendant without representation, those who had defense counsel were 3.2 times more likely to be acquitted. Across a hundred year sample from 1861 to 1961, 56 per cent of defendants with legal representation were acquitted, compared to just 28 per cent of those without lawyers. Even if convicted, represented defendants were more likely to receive non-custodial penalties or shorter gaol terms than their undefended counterparts.

The effect of legal representation remained significant even when factoring in other variables such as defendant sex, race, age, class, geographical location and offence type. There was consistently at least a ten per cent difference between acquittal rates for those defended and undefended within different sub-categories.

For some groups, however, representation appeared even more important: whereas being defended meant Caucasian defendants were three times more likely to be acquitted, the odds for ethnic minority defendants improved 4 and a half times.

The data also intimated that even the worst lawyer was better than no lawyer at all: while the success rates of different barristers varied dramatically, even the defendants of a lawyer with the lowest acquittal rate stood significantly better odds than those who were undefended.

Given this, it is hard to see how a defendant without legal representation can ever be said to have had a fair trial.

Current legal aid provisions in Australia

The research is clear: people in trouble with the law need lawyers. And today as in the past, legal problems tend to disproportionately affect those least able to afford counsel.

Yet, as Law Council of Australia President, Fiona McLeod SC, pointed out earlier this year, over the last two decades legal aid in Australia has faced a steadily worsening funding crisis. In 2014, a Productivity Commission Inquiry Report into access to justice arrangements called for an additional $200 million a year to be allocated to legal assistance to ensure disadvantaged community members received the support they needed.

There was cause for celebration last month when the Turnbull government reversed its plans to cut $35 million for community legal centres from the budget, an action that would have in particular affected legal services for Indigenous peoples and those escaping family violence situations. This was one small victory for equal justice in Australia; let’s hope there is more to come.

In 1900, Mary Ryan was living at North Pine, near Brisbane, with her five children. Her husband had not lived at home with the family for some four or five years. Early on the morning of 4 February 1900, Mary gave birth to her sixth child, a boy. On 17th February 1900, she was charged with the baby’s murder. The evidence of the children – the only witnesses – allowed what was otherwise a strong case for infanticide to go unpunished.

Upon attending the family home, Acting Sergeant Alexander Leslie talked to Mary and her three daughters, Bridget (13), Margaret (10) and Mary Jnr (8). There was evidence that Mary had said that the baby had been still born. Initially, at least, this was also the story that her three daughters told the Sergeant. They said that they had not seen or heard a baby. By the end of his interviews with the girls, however, all three had told him that they had in fact seen and heard a baby crying on the morning in question. With such statements in hand the police charged Mary with murder.

At Mary’s committal hearing, held in Brisbane on 23 and 24 February 1900, the girls gave the same accounts as they had previously given to the police. Bridget and Margaret told of having seen their mother carrying a crying baby wrapped in rags outside, where she had put it near a log in the backyard.

Mary Jnr gave further evidence. After seeing her mother leave the baby next to the log, the young girl had followed her mother to ask if she should bring the baby inside. But Mary Snr didn’t want the baby inside. Instead Mary had asked her daughter to get her a cup of tea. When Mary Jnr returned with the tea, her mother told her to get a fire stick from the kitchen fire and set fire to the rags outside.

Young Mary did as her mother instructed, thus starting the fire that would ultimately claim the life of her baby brother. After starting the fire she had gone back inside to again ask if she should bring the baby in. “No” said her mother. “Let it burn.” Based on their evidence of having heard and seen a live baby, Mary Snr was committed to stand trial for the baby’s murder.

The trial took place at Brisbane Supreme Court in early June 1900 before Justice Cooper. This time Bridget and Margaret both testified that they had not seen or heard a baby on the day in question, nor had they seen anyone put a baby on the log nor had they heard their mother say anything to Mary other than to ask for a cup of tea.

They both confirmed that since the committal they had been taken back to the house and had been shown that they could not possibly have seen what they said they had seen at the committal. In court, Margaret explained “it was storytelling…I was afraid I would go to gaol if I didn’t say it. Mother has always been good and kind to me.”

Having observed Margaret give her evidence, Justice Cooper said “all this really went to show that the evidence of the child was unreliable. Some children have fertile imaginations and imagine all kinds of things and then forget what they had said.”

In his notebook Justice Cooper noted that the child Mary ‘does not understand the nature of the oath and has not been taught about God or heaven or hell.’ He went on: ‘I am satisfied that the taking of an oath would have no binding effect on the conscience of the witness. Witness does not understand her liability to any punishment for untruthfulness.’ He refused to hear her testimony.

The prosecutor conceded that Mary’s testimony was ‘the last fragment of the evidence for the prosecution’ and he could take the case no further. Defence counsel, Mr Lukin, asked Justice Cooper to direct the jury that there was no evidence to convict the defendant. Mr Kingsbury agreed with his colleague’s request.

Justice Cooper turned to the jury and directed them to find the defendant not guilty on the basis that absolutely no evidence had been given that she had murdered her baby. Mary was acquitted and presumably went home with her children.

Article from Queensland Figaro, 17 December 1903, 53.

As tragic – and horrific – as this case is, it tells us a lot about how children gave evidence in court in the early twentieth century and how their evidence was received. Reading between the lines, it appears that the trial was conducted with a very clear plan for achieving the outcome that it did.

On its own, Mary’s case raises serious questions about life and law at the turn of the twentieth century. Did the court or the crown want to avoid the risk of five children, one of whom had a disability, becoming a burden on the Salvation Army Home or other similar organisations? Were they cognisant of – and sympathetic to – the pressure Mary had been under to support the five children she had, let alone a sixth. Did they surmise that such pressure might drive a woman in that position to do what Mary had done?

There is a wealth of research on infanticide and cases like Mary’s certainly were not rare. On the Prosecution Project database there are already records of 127 cases of women being charged with murder in Queensland between 1863 and 1951. Many of these cases involved infanticide. Of this 127, only eight women were found guilty. The great majority of those charged with murder (99 of the 127 cases) were found not guilty or had their charges dismissed before going to trial or during the trial.

The shifts in the girls’ testimonies, and the way in which Mary Jnr’s testimony was not received suggest that Mary Snr’s trial was conducted with a view to obtaining an acquittal. It appears to have been a mere pretense of a prosecution. Were other cases against women or otherwise sympathetic defendants designed to provide a mere spectacle of justice? Perhaps in time, the collection and analysis of cases like Mary’s will help provide an answer.

Author: Robyn Blewer

To cite this research brief: Robyn Blewer, ‘The pretense of a prosecution?’ The Prosecution Project, Research Brief 28, https://prosecutionproject.griffith.edu.au/pretense-of-prosecution/ (6 Apr 2017, viewed 7 April 2017).

Domestic murders are perhaps the most distressing type of homicide, particularly when parents kill their children. But children also kill parents. In Australia about thirteen homicides annually involve children committing parricide, and the majority of victims are fathers. Most offenders are adult children of victims, but around 11 per cent of parricides are committed by children aged ten to seventeen.

Children usually commit domestic homicide because they are either severely mentally ill (showing signs of psychological deterioration before the event); ‘dangerously anti-social’ (with sociopathic tendencies); or victims of severe abuse. We know that children raised in violent homes are often victims of the same violence experienced by their mothers. Butdecades of research shows that children who witness ongoing family violence are often as psychologically and emotionally traumatised as physically abused children. It is unsurprising then that some children who witness intrafamilial abuse will also commit patricide.

This blog draws on historical criminal cases involving adolescents and young adults responsible for the deaths of their fathers, stepfathers or mother’s boyfriends. It explores how all-male juries and courts historically responded to patricide in family environments characterised by domestic violence.

Australian historical research on homicide indicates a level of sympathetic understanding of the dynamics of family violence. Colonial women standing trial for murdering their husbands were more likely to beacquitted of homicide or attempted homicide when juries were told of their experiences of family violence at the hands of the deceased. Ironically, today such acquittals are rare, despite recognition of conditions such asbattered woman syndrome.

The historical justice system was not so much pro-woman in these matters as they were reluctant to penalise violent actions that occurred in the familial realm in general. Violent men who killed their partners were also treated with leniency, often receiving a ‘domestic discount’ in their sentences. Men who killed their intimate female partners were more likely to see their death sentences commuted to life imprisonment than men sentenced for the murders of women who were strangers or acquaintances. This discount also extended to men who killed their children. Fathers were far more likely to avoid an eventual execution than other men who killed children. This raises interesting questions about how the court system historically responded to children who were charged with the deaths of their fathers, and whether there was any form of discount extended to them.

A Trove search of the terms ‘defended mother/patricide/killed father’ reveals a surprising amount of newspaper reporting on children accused of killing their mother’s partners or ex-partners throughout the twentieth century. For the analysis presented here, I selected thirteen cases based on reports of children killing men in defence of mothers or where there was a history of domestic violence. The children included nine sons and four daughters aged fifteen to twenty-one. The offences occurred between 1909 and 1954.

Most of the victims were fathers (ten cases), alongside two boyfriends and one step-father. I use the word ‘victim’ loosely. It is distressing to read the degree of violence perpetrated by these men against the women and their children. Most of the children had experienced family violence throughout their lives. Defendants, mothers, brothers, and sisters testified to violence consisting of frequent verbal abuse, beatings, and numerous attacks with weapons. In many cases defendants and their siblings told the court about their own physical and emotional victimisation. As one defendant stated, ‘Our life has been hell for a long time but it will be better now’.

Mothers commonly testified to the men’s threats to kill them. Alarmingly, many of these threats were directed at the children. In 1931, a mother told the court that her husband had previously threatened to kill her, in front of the girls, then kill himself and leave the girls in State care. Her 16-year-old daughter was charged with manslaughter for shooting her father when he assaulted her and threatened to ‘do them all in’.

There appears to have been little formal intervention prior to these homicides. Only two of the men were held accountable for their violent behaviour by the state. One of the fathers was on a six-month probation bond when his daughter shot him while he was choking her mother. His probation related to a previous attempt on the woman’s life. One mother’s boyfriend served two months imprisonment for assaulting her, and was only recently released in 1920 when her fifteen-year-old son killed him with aservice revolver.

The primary cause of death in most cases (eleven of thirteen) was due to gunshot wounds. Many of these guns were ex-service weapons. A nineteen-year-old married daughter told a 1946 court that she shot her father with a pistol given her by an Americanwhilst she was in Brisbane. Guns were used in all the killings committed by girls. Sometimes children used whatever was close to hand. One sixteen-year-old boy threw a large stone at his mother’s boyfriend when she was attacked in the front yard. The man fell, and the head injury subsequently killed him. Ironically, many of the sons used weapons that the father or step-father had earlier threatened to use against their mothers.

Almost all the children were charged with murder. Only one girl was charged with manslaughter. However, in two cases charges were dropped following the coroner’s inquiry. For example, in 1931, a sixteen-year-old boy killed his mother’s boyfriend when he attacked her in their front yard in front of onlookers. Sydney coroner, Mr May, ruled that the death was justifiable, noting that case law stipulated that ‘a child may defend its parent even to the point of taking the life of another, if there is good reason to believe the parent is in danger from this other’. Earlier in 1920, Melbourne deputy-coroner Mr Phillips ruled the death of a father as ‘misadventure’. He laid the responsibility for the death at the feet of the deceased who ‘was not worthy to bear the name of father, husband or man’.

Typically though coroners ruled that defendants were answerable for the killings and committed them to stand trial. In 1949, a coroner said he did not believe theson’s story that the gun had discharged accidentally, shooting the father in the back of the head. This was after hearing evidence that on the day of his death, the father had chased the mother with an axe, and later assaulted her physically including choking her. In a 1948 case, the nineteen-year-old killed his stepfather with a German army rifle after being knocked unconscious by the man when he attempted to save his mother. The Coroner, although acknowledging that the son’s actions were ‘laudable’, committed him for trial because he questioned ‘whether he was justified in taking the final step’. In both cases, however, the juries decided that the killings were indeed justified, and acquitted both defendants.

In fact, all-male juries acquitted all the defendants who stood trial, even though an indictment for murder meant a jury could also deliver an alternative verdict of manslaughter. In one summing-up, Justice Macfarlan reminded the jury that ‘a judge might think she deserves no punishment at all but she might still be guilty of manslaughter’. Yet none of the juries in these cases took that action. In the case of the married woman who shot her father, the jury was reported to have acquitted her of both murder and manslaughter. Acquittals were sometimes quick; five minutes in one case, ten minutes in another. Newspapers referred to these acquittals as ‘sympathetic’ verdicts.

This raises questions about the two cases where children pleaded guilty because a guilty plea effectively deprived them of a possible acquittal. One boy pleaded guilty to the lesser offence of manslaughter, and was subsequently released on a three-year bond. This was, the judge admitted, an exceptional outcome in an offence involving a firearm, yet he was clearly swayed by the sentencing reports, including the investigating police detective’s claim that it was the father’s ongoing violence towards the mother and children that triggered the shooting. But there is nothing in this case which qualifies it from those where juries acquitted the defendant. It is unclear why the boy did not avail himself of the jury’s probable sympathy.

The other guilty plea case is more complex. In 1953, a fifteen-year-old boy pleaded outright to murder after he attacked his father with an axe as he slept. At the time, father and son were sharing a bed in the boy’s married sister’s home. What differentiates this case from the other incidents is that the boy’s actions were not in response to an actual attack occurring at the time of the offence: the boy’s mother was living elsewhere and the father had not committed violence against her on the day or days preceding his death.

Officials would naturally assume that she was therefore in no direct danger of being killed. And while the case law supported children legitimately killing another person to defend a parent when their life was in danger, this danger appears to have been understood as danger in the immediate present. However, the mother had instigated proceedings seeking maintenance support from her ex-husband. The boy stated that on the day of the killing, his father told him that if she succeeded then he would ‘do her in’, and the boy believed he would. The sister testified about the ongoing domestic violence she witnessed growing up, including an incident when her father shot her mother, and the defendant told of his father’s constant threats to cut his mother’s throat. During the sentence hearing, a psychologist reported that during a prison interview the boy said that ‘at least my mother will be safe now’. Tragically, the boy was probably right. Contemporary Australian statistics suggest women are at greatest risk of domestic homicide during or just after separation.

The circumstances in this last case though were such that a jury, no matter how sympathetic, might struggle to acquit the defendant or even return an alternative manslaughter verdict. The boy made a full confession to police that he had intended to kill his father. The father was completely defenceless; he had not attacked the mother; and he had not been physically violent to his son prior to the killing. Perhaps the boy pleaded guilty in a plea bargain for a reduced sentence, in this case, indefinite detention at Her Majesty’s Pleasure. This was arguably more lenient than a death sentence (which in effect would have amounted to life imprisonment because government policy in Tasmania directed the commuting of death sentences from 1933 onwards). Although he and his family would not have had a date for his release, it did allow authorities to end his detention much earlier.

These are only a handful of patricide cases but they raise interesting questions about the prosecution of children who kill in response to domestic violence. Were juries always so understanding of parricides motivated by abuse in the home? Did conviction rates change over time, particularly as the criminal prosecution process became increasingly dominated by guilty pleas? I can only think that if this was the case, then children from violent homes who killed violent men were deprived of any real justice.

Moreover, apart from what has changed, it is apparent that too much remains the same. As in historic cases, contemporary parricide events usually involve those who have been failed by the authorities, and thus by society as a whole.

Author: Lisa Durnian

To cite this research brief: Lisa Durnian, ‘”Mum will be safe now”: Prosecuting children who kill violent men,’ The Prosecution Project, Research Brief 27, https://prosecutionproject.griffith.edu.au/children-who-kill-violent-men/ (3 February 2017, viewed 4 February 2017).

The sexual abuse of children is overwhelmingly perpetrated by people known to victims. National data collected by the Australian Bureau of Statistics ‘Personal Safety Survey’ in 2005 found that victims knew eighty-nine per cent of perpetrators of sexual abuse. Amongst the highest categories, respondents indicated that family members were responsible for forty-five per cent of abuse, with at least fourteen per cent involving fathers and step-fathers.

Familial sexual assault and incest are often described as an ‘unspeakable’ offences: occurring in the private sphere and hidden from public view. Making sexual abuse in families visible was an important part of feminist activism and scholarly inquiries of the 1970s and 1980s.

In the 1980s, Linda Gordon’s pioneering analysis of the records of Boston’s child protection agencies showed that sexual abuse in families was an offence well-known to authorities: at least ten per cent of records contained references to familial child sexual abuse. Gordon explains that in the late nineteenth century child protection advocates were ‘aware of it and taking action against it’. But this changed in the first half of the twentieth century when they came to blame the crime on child ‘sex delinquency’. Concern about sexual abuse turned outward, towards stranger abuse rather than abuse perpetrated in the home until the feminist interventions of the 1970s.Alongside their colleagues in law, criminology and elsewhere, feminist historians wanted to uncover the treatment of incest and its relationship to patriarchal systems of power. Of course, historians do not have access to self-reported data like the Personal Safety Survey in order to estimate the extent of incest or the state’s responses to it. So those studying the problem looked to other data sources to reconstruct this history.

Australian child protection workers in the late nineteenth century seem to have had far less interest in recording or acting on sexual abuse in the family than those in Boston. Dorothy Scott and Shurlee Swain’s authoritative history of Australian child protection found that sexual abuse was mentioned in as little as two to a maximum of five per cent of the records of agencies, with child neglect and cruelty dominating their agendas.

In the realm of criminal justice, however, Australia was amongst the first in the British world to make legislative attempts to tackle the problem of familial child sexual abuse. Sexual offences within families had previously been prosecuted under general sexual offence provisions in the criminal law, but in the late nineteenth century legislators created specific offences. South Australia in 1876, followed by Queensland and Western Australian in the 1890s, were the first states to create the criminal offence of ‘incest’. Other states created what we might call ‘relational’ offences: offences that were deemed more serious by the power relationship of offender to victim, thus sexual offences by fathers, and later step-fathers, were subject to a higher age of consent and higher maximum penalties than other sexual offences.

IS THERE LIFE AFTER INCEST?, CAROLE WILSON, 1988. IMAGE VIA STATE LIBRARY OF VICTORIA.

Assessing the deployment of the criminal law against familial sexual offences is difficult because of the nature of the historical data and prosecution practices. If we just look at those charged with specific relational offences, we will underestimate the number of family child sexual abuse cases that appeared before the courts. Although these relational offences existed, police and prosecutors often charged fathers with general child sexual assault provisions and if the offence was an indecent assault (i.e. a non-penetrative offence), there was no differentiation of familial offences from others. In Queensland, for example, the use of ‘incest’ provisions accounted for only six per cent of indictable sexual offences, while sexual offences examined at the case file level in New South Wales suggest up to twenty-five per cent of indictable offences against girls under the age of consent involved family members. Once these cases appeared in the higher courts they had a strong chance of a successful prosecution: in Queensland sixty-seven per cent and in New South Wales seventy-five per cent of cases resulted in convictions.

Certainly the law contained provisions for prosecuting offences within families, but a major impediment lay earlier in the criminal justice process. The reporting of abuse in Australia was very unlike that of New York City one hundred years ago where child protection workers were actively involved in the investigation of sexual abuse. In Australia, police investigations of abuse relied on families, particularly mothers, to make complaints.

Reliance on individual reporting was a particular problem in policing familial sexual violence due to family’s reluctance to report the offence. In the study that Lisa Featherstone and I conducted on the prosecution of sexual offences in the 1950s we found that the chief reason for family’s reluctance to report abuse was a very real fear of poverty.

In the 1950s, it was difficult to survive without a male breadwinner, and few lone mothers could support themselves and their children. Without an adequate welfare system, mothers were aware that their families would not remain intact if they reported abuse. In court records, mothers and other family members describe weighing up their own experiences of physical or sexual assault and the abuse of their daughters with the destitution that would be brought to bear on their families if their husbands were incarcerated.

In the place of reporting, some mothers developed means of ad hoc surveillance of their male partners, whereby they attempted to monitor men’s sexual behaviour around their children without notifying police of their husband’s criminal activities. Alongside these pressures, dynamics of control in families meant that accused men often blamed their wives for their assault of their children. For example, one defendant who had assaulted his daughter when his wife in hospital told police he ‘had no control over himself’ while his wife was away. Some fathers even explicitly described their daughters as a sexual substitute for while their wives were absent from the family home.

The financial pressures, social shame and the threats of violence brought on mothers in familial child sexual abuse cases meant that offences often came to light at moments of crisis – when the abuse was revealed to those outside the family; when mothers’ surveillance of their own homes failed; when pregnancies of their daughters occurred.

Historically, pressures on family life inhibited reporting of offences as their social consequences reached well beyond the conviction of the defendant and meant that families could be subjected to poverty. Disturbingly, the economic position of families remains an impediment to the criminal prosecution of familial sexual abuse even today. As child sexual abuse expertsJane Goodman-Delahunty and Kate O’Brienexplain, ‘In most cases, the offender is employed and is the main family breadwinner; thus, victims and non-offending parents often face financial hardship by pursuing legal action’.

The blunt tool of criminal law was neither incentive for reporting nor effective in dealing with the consequences for families after state intervention. In some ways, the criminal law punished the family just as much as the defendant, and this was even more acute at times where welfare provisions were limited for families in crisis. Until we can provide adequate financial and social support for families dealing with complex emotional, social, and financial dimensions of family violence I fear we will continue to experience many of the same dynamics today as we did in the past.

Author: Dr Andy Kaladelfos

To cite this research brief: Andy Kaladelfos, ‘Uncovering a hidden offence: Histories of familial sexual abuse,’ The Prosecution Project, Research Brief 26, https://prosecutionproject.griffith.edu.au/histories-sexual-abuse (13 January 2017, viewed 14 January 2017).

Among the lighter sentences awarded to those convicted in the Victorian Supreme Court in the nineteenth century was that of ten days imprisonment handed down to James ‘Charley’ Davidson in March 1865. His offence, however, was more weighty, its context more global than local in significance.

The pages of the Supreme Court register record that Charley was committed for trial at Williamstown, the portside town not far from Melbourne, on 16 February 1865. There he had been charged by police with ‘enlisting into a foreign service’, after being earlier arrested disembarking from a boat leaving from the SS Shenandoah, a vessel then tied up at Williamstown. Charley was one of four men so arrested: one managed to escape further prosecution as he was not a British subject; another was acquitted at trial as he was a youth; only William McKenzie shared Charley’s fate, both of them receiving their light sentences at the hands of Justice Molesworth after being found guilty, in the words of the court-book, of ‘attempting to enter in service of [a] foreign power’.

Sketch of Shenandoah in Hobson’s Bay. Australian News for Home Readers, 23 February 1865, 9.

This was no ordinary prosecution. It had been directed by the Victorian Executive Council (the governor in council with his ministerial advisers) as one of a number of measures in their confused response to the arrival and prolonged stay of the Shenandoah from late January. As its name signalled, this was a vessel with American affiliation, in the service of the rebellious Confederate States that had been at war with the Federal Government of the United States since 1861. By the time of the ship’s arrival the Civil War was drawing to a close – but at a time before cable, communication about the state of the war was only as fast as the shipping mail. It was known though that this was no merchant vessel, but one engaged in the bloody business of attacking and destroying the merchant shipping of the United States.

The arrival of the Shenandoahdivided Melbourne. For some, especially the US consul in Melbourne, William Blanchard, the vessel was nothing better than a pirate ship and so should be seized by the government. For others, it was a vessel of a belligerent power and so should be subject to the international law governing such – that it leave the port as early as possible but in any case not within 24 hours of a vessel belonging to the other combatant power, in this case the United States. There was no shortage of defenders of the Confederate cause in Melbourne, some of them Americans who had flooded in with the gold rushes. And a fair section of ‘British’ colonial opinion regarded the Confederate states as engaged in a rightful claim of self-government, the kind that Victorians wanted for themselves.

Sketch of visitors aboard the Shenandoah. Australian News for Home Readers, 23 February 1865, 9.

The colonial response was overlain by the policy of the imperial government. After the outbreak of the war in 1861, Queen Victoria had issued a proclamation of the British Empire’s neutrality. While this limited the help that might be given to either side it also entailed a recognition of the belligerent status of the Confederacy, and so was an impediment to the Victorian government acting against the Shenandoah as though it was a pirate ship.

Over a number of weeks, the governor and the Executive Council proved themselves out of depth in dealing with the challenge of enforcing neutrality. Nevertheless, it repeatedly warned the captain against any attempt to recruit sailors for service on his vessel. So when police were alerted to the presence on the ship of a number of men who were suspected of enlisting, they moved on Charley and his three companions who had been seen at night in a boat near the Shenandoah.

James was a 22-year-old sailor from Scotland, not long in Victoria. He was a British subject and so amenable to the jurisdiction of the Victorian courts. Against him in court were a number of witnesses, marshalled by the very active US Consul. Some had been encouraged to abandon the ship. Much fun was made by Charley’s counsel, the leading Melbourne advocate, Butler Cole Aspinall, of the fact that a principal witness was a ship’s cook, John Williams. Williams had been taken from one of the ships that the Shenandoah had seized and sunk in November 1864. His identity as an African American may have added venom to Aspinall’s attempt to ridicule the prosecution.

Justice Molesworth was not brow-beaten by Aspinall, even if the light sentence indicates equivocation over Charley’s culpability. The facts were that Victoria was bound by imperial neutrality, which had been proclaimed by the Queen and published locally in 1861 – and so an attempt to recruit labour for a war vessel was illegal, a breach of the provisions in the Foreign Enlistment Act of 1819. Not able to implicate Captain Waddell, who did no more than deny that he was engaged in the business of gathering men for service on his war-ship, the Victorian government targeted those who might be enlisting.

Charley’s conviction was nothing compared to the damage being done to the imperial government by colonial Victoria’s prevarication over the Shenandoah. After leaving Melbourne the vessel sailed into the North Pacific and for a number of months attacked the US whaling fleet, destroying a large number of ships and seizing their cargo. Without the coal taken on board at Melbourne, and the labour recruited, the Shenandoah could not have sustained its pillaging. So after the United States in 1871 sued the United Kingdom for its heavy losses at the hands of Confederate shipping, the Shenandoah’s Melbourne stopover was ruled by an international court of arbitration in 1872 as an element of the liability.

Charley got ten days, but Captain Waddell’s stay in Melbourne cost the British government more than £800,000.

Recently the Prosecution Project celebrated its completion of 100,000 records. We have marked the occasion with a presentation by the project team of some of the research being carried out with these records. On Thursday 14 July we presented at the Banco Court of the Queensland Supreme Court, an event chaired by the Chief Justice, Her Honour Catherine Holmes. This video records the occasion.

]]>Interloping at a history conference The Digital Panopticon: Penal history in a digital agehttps://prosecutionproject.griffith.edu.au/interloping-at-a-history-conference/
Mon, 11 Jul 2016 23:54:42 +0000https://prosecutionproject.griffith.edu.au/?p=1706Research Brief 24

As the Prosecution Project’s resident statistician, I recently infiltrated my first history conference – the Digital Panopticon held at the University of Tasmania. I must admit that this conference was one of the most fascinating I have attended. Interesting not only for the variety of projects we heard about, but for the innovative methods and scope of historical data on display.

One of the most appealing aspects of the conference was the diversity of research topics touched upon across the three days. The overriding theme was the use of digital technology to reconstruct and understand the past. In this vein, presentations covered a range of digital undertakings on subjects as diverse as convict transportation, penal punishment, prosecution practices, prisoners of war, military history, and family genealogy research.

The conference opened with a great illustration of how digitisation can help us understand both local and global history. Clare Anderson’s opening keynote address outlined an ambitious digital project undertaken to track the movement of convicts around the world. Such data revealed transportation as more than a means of punishment, as driven by economic and political imperatives, where convicts themselves became drivers of global change.

We were also taken on a digital journey through the Digital Panopticon website – the ongoing project reconstructing lives in the United Kingdom and Australia by linking historical genealogical, biometric, and criminal justice datasets. Lucy Williams, a researcher on the project, gave us an interesting example linking English census data to the Old Bailey records in order to explore the wider social context of female offending.

In the keynote address opening the second day, Deborah Oxley used the height measurements of transported convicts compared against modern and contemporaneous peers to explore the ‘antipodean advantage’ in Australia. Not only was the substance of the talk engaging, but the presentation itself highlighted the advantages of digital technology to academic presentations. Animated paintings and responsive graphs gave us all something to work towards in our next conference presentations.

Meanwhile, the Prosecution Project panel reminded us that Australia has a history after convict transportation. Exemplifying the meticulous record keeping practices replicated in the colony, the Prosecution Project team walked us through the trial process from beginning to end. The panel included an exploration of the plea process, the work of lawyers and judges, how juries functioned, the impact of witnesses, and, of course, sentencing outcomes.

Three Prosecution Project team members expanded on their research in separate presentations on the final day. PhD candidate Lisa Durnian examined how the decision to plead guilty was influenced by a family relationship with the victim in sex offence cases. In the following session Research Fellow Alana Piper and Project Leader Mark Finnane explored the evolution of legal criminal defence and the impact of defence lawyers on the criminal trial.

In addition to the potential of digitised data, the use of digital technology in reimagining research and education was exemplified in a session on the second day entitled Digital Geographies. Colleagues Martin Gibbs, David Roe, Richard Tuffin, and John Stephenson showcased the use of LiDAR surveillance in reconstructing an accurate 3D digital representation of Port Puer in Tasmania. Imogen Wegman used GIS and historical maps to visually explore the evolution of land grants in colonial Van Diemen’s Land. Finally, Zoe Alker and Nick Webb demonstrated the use of gaming technology in the digital construction of the never-built panopticon designed by Bentham.

Being a numbers and methods person, I was particularly captivated by the variety and quality of historical data highlighted across all the conference papers – from government and judicial records to media reports, maps, and architectural plans. This was exemplified in Robert Shoemaker’s keynote address opening the final day. This presentation was a fascinating journey through the evolution of record keeping as a grassroots means of understanding criminality. Other papers explicitly addressed aspects of quantitative research, for example Matt Allen explored the historical use of numbers to support ideological notions of criminology, while Lydia Nicholson introduced us to the potential of performing quantitative history.

In general, the quantity and variety of detail available in the historical record showcased across the presentations was both eye opening and exciting – even with the caution embodied in Jennie Jeppesen’s entertaining presentation regarding the practical difficulties encountered in using digital newspapers to find Virginian convicts, from websites regularly crashing to exorbitant fees to access records.

Overall, the conference highlighted the enormous advantages that can be gained by digitising and linking historical records – something we see in our daily work on the Prosecution Project. The Digital Panopticon conference showcased the innovation and development in historical research as well as the potential that our new digital age offers to how research is conducted, who can conduct research, and what we can learn from the historical record.

Author: Dr Lauren Vogel, Postdoctoral Research Fellow

To cite this research brief: Lauren Vogel, ‘Interloping at a history conference The Digital Panopticon: Penal history in a digital age’, The Prosecution Project, Research Brief 24, https://prosecutionproject.griffith.edu.au/interloping-at-a-history-conference (12 July 2016, viewed 19 July 2016).